McBryde v. Amoco Oil Co., 13127.

• Decision Date: 23 July 1979
• Docket Number: No. 13127.,13127.
• Citation: 404 A.2d 200
• Parties: Jerry Lee McBRYDE et al, Appellants, v. AMOCO OIL COMPANY et al., Appellees.
• Court: D.C. Court of Appeals

404 A.2d 200

Jerry Lee McBRYDE et al, Appellants, v. AMOCO OIL COMPANY et al., Appellees.

No. 13127.

District of Columbia Court of Appeals.

Argued June 6, 1979.

Decided July 23, 1979.

Robert H. Reiter, Washington, D. C., for appellants.

Robert E. Higdon, Washington, D. C., for appellees Amoco Oil Co. and American Oil Co.

David F. Grimaldi, Washington, D. C., for appellee Big Four Automotive Equipment Co.

Gilbert E. Tietz, Rockville, Md., for appellee Capital Tire Equipment Co.

Before NEWMAN, Chief Judge, and KERN and MACK, Associate Judges.

PER CURIAM:

Appellants, plaintiffs below, seek to set aside an order of dismissal entered sua sponte by the court in the course of a pretrial conference. The pretrial judge dismissed the case "for failing to state a claim against any of the named defendants which is justiciable." We find this dismissal to be error.

In a complaint for damages (sounding in strict liability, negligence and implied warranty), appellants, husband and wife, alleged that while the husband was in the act of inflating a truck tire on a mechanical tire-changer, the machine exploded striking him in the head and arm and resulting in permanent injuries. Appellees¹ denied responsibility and alleged that the injuries were the direct and proximate result of the husband's contributory negligence and assumption of risk.

Appellants' pretrial statement claimed that all the appellees, by reason of their involvement as either the owners of the ground upon which the injury occurred or as the manufacturer, distributor or servicer of the tire-changer, were responsible for the injuries in light of the dangerous nature of the instrumentality, as well as their negligence in failing to supply safety measures to provide warnings on the proper use of the equipment and to service the equipment properly.

The pretrial judge, on the basis of the pleadings, the depositions, the answers to interrogatories, and the discussions of counsel, dismissed appellants' claim sua sponte. The court reasoned that the appellants had no information concerning the cause of the explosion, and that they had not presented facts sufficient to show responsibility for the safe operation of the tire-changer or facts constituting grounds for a cause of action against any of the defendants.²

Dismissal for failure to state a claim upon which relief can be granted is proper under Super.Ct.Civ.R. 12(b)(6) (which is substantially the same as Rule 12(b)(6) of the Federal Rules of Civil Procedure) only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'". Owens v. Tiber Island Condominium Association, D.C.App., 373 A.2d 890, 893 (1977) quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). For purposes of that motion, the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Klenk v. Capital Transit Co., D.C.Mun.App., 139 A.2d 275, 277 (1958). On this record, we cannot say that appellants would have been precluded from recovery under any state of facts which could have been proven in support of their claim. See generally Berman v. Watergate West, Inc., D.C.App., 391 A.2d 1351 (1978); Morningstar v. Black & Decker Manufacturing Co., W.Va., 253 S.E.2d 666, 676-84 (1979).

However, the order in this case may

reflect the view of the pretrial judge that proof of the claimed violation was insufficient and thereby necessitated summary disposition. As a general rule, a complaint should not be dismissed under Rule 12(b)(6) because the court doubts that the plaintiff will prevail in the action. Whether a plaintiff can prevail is a matter determined on the basis of proof and not merely on the pleadings. Wright & Miller, Federal Courts & Practice, Civil § 1357 at 602-03 (1969).

In this case, because pretrial conferences are not recorded, we have no record of what factual statements appellants' attorney offered to support his conclusions and are thereby prevented from reviewing whether appellants would have been able to prove the allegations of their complaint. We note that the pretrial judge could have suggested to the appellees that they file a formal motion for summary judgment under Super.Ct.Civ.R. 56. This would have given notice to the appellants and provided both parties with the opportunity to file affidavits setting forth specific facts showing there was no genuine issue for trial and, thus, facilitating appellate review. See Wirtz v. Young Electric Sign Co., 315 F.2d. 326 (10th Cir. 1963).

This procedure would also have been consistent with Super.Ct.Civ.R. 12(b) which requires that a motion to dismiss for failure to state a claim on which relief can be granted shall be treated as a motion for summary judgment and disposed of as provided in Rule 56 when, as here, matters outside the pleadings are presented to the court.

To the extent that Dormu v. Gill, D.C.App., 277 A.2d 104 (1971) by way of dicta suggests that a judge conducting a pretrial conference may, sua sponte, summarily dispose of a case, we believe that procedure should be used very infrequently and with an abundance of caution. It is only where "the facts material to a cause of action are shown to be undisputed, and those facts so established indicate an unequivocal right to judgment favoring a party," that...